DETAILED ACTION
Notice of Pre-AIA or AIA Status
The present application, filed on or after March 16, 2013, is being examined under the first inventor to file provisions of the AIA .
Claim Rejections - 35 USC § 102
The following is a quotation of the appropriate paragraphs of 35 U.S.C. 102 that form the basis for the rejections under this section made in this Office action:
A person shall be entitled to a patent unless –
(a)(1) the claimed invention was patented, described in a printed publication, or in public use, on sale, or otherwise available to the public before the effective filing date of the claimed invention.
Claims 1-4, 6, 9, 13-15 and 17-19 rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Degroot et al. US 11,230,641 B2 with evidentiary support reference Klosin et al. US 9,000,108 B2.
Regarding claims 1, 3-4, 13-15 and 18 Degroot teaches INFUSE olefin copolymer blend Sample #2-Medium MWD (col 33, Table 4), which is cast into a film (col 33, lines 45-47) and which comprises 52 wt% INFUSE 9007 and 48 wt% of INFUSE 9507. The INFUSE olefins are ethylene-octene block copolymers (Col 33, Table 3A).
The first INFUSE 9007 has a density of 0.866 g/cm3, Mn of 65210 g/mole, Mw/Mn of 2.42 and melt index of 0.5 g/10 min (Col 33, Table 3A and 3B), which corresponds to the claimed (i).
The second INFUSE 9507 has a density of 0.866 g/cm3, Mn of 37660 g/mole, Mw/Mn of 2.36 and melt index of 5 g/10 min (Col 33, Table 3A and 3B), and corresponds to the claimed (ii).
The INFUSE blend ethylene copolymer composition has a melt index of 1.5 g/10 min, Mw/Mn of 2.47 (Col 33, Table 4) and additionally the Mn of the first ethylene copolymer 65210 g/mole (Mn1) is greater than the Mn of the second ethylene copolymer 37660 g/mole (Mn2), which read on the claimed requirements. The ethylene copolymer blend Sample #2 would possess the density of 0.866 g/cm3 since each constituent INFUSE 9007 and 9507 have the density of 0.866 g/cm3, and meets the density d3 requirement.
Degroot does not address the levels of hafnium in the polyethylene-octene INFUSE olefin block copolymers, however information on the amount of hafnium present in the polyethylene-octene copolymer can be gleaned by the evidentiary support reference Klosin who discloses that the commercial INFUSETM ethylene octene copolymers from Dow Chemical company are generated in the presence of hafnium based catalyst system (col 45, lines 24-26 and reference claim 1). Klosin provides an example polyethylene octene(PEO) copolymer BB (Col 105, Table 4) with similar Mw as INFUSE 9507, which utilizes Hf based catalyst with catalyst efficiency of 726,000 gPEO copolymer/g of metal (Hf). Hf content can be calculated to be 1/726,000 x 106 ppm =1.4 ppm. Owing to the closeness of the materials make-ups and as evidenced by Klosin, similar catalyst levels would be present in both INFUSE 9007 and 9507, and the blend composition of Degroot Sample #2 would inherently possess the required hafnium levels of applicants’ claims, including claim 13.
Regarding the first and second ethylene copolymers of the instant claims, the polyethylene-octene copolymers of Degroot meet all the product structural requirements. Applicant is reminded that "[E]ven though product-by-process claims are limited by and defined by the process, determination of patentability is based on the product itself. The patentability of a product does not depend on its method of production. See MPEP 2113.
Regarding claim 2, Degroot teaches (col 33, Table 3A and 3B), polyethylene -octene block copolymers INFUSE 9007 and INFUSE 9507 are polymerized utilizing the same catalyst system, and have the same density, similar Mw/Mn values. Since short chain branching influences the density, and the Mw/Mn, both INFUSE 9007 and INFUSE 9507 would inherently possess similar short chain branching levels and thus satisfy SCB1/SCB2 condition.
Regarding claims 6, 9 and 17, as discussed when addressing claim 1, since the presence of third ethylene copolymer is optional, the claimed requirements are met by Degroot’s Sample #2 (Table 4) ethylene octene copolymer blend.
Regarding claim 19, the ethylene copolymer blend composition is taught by Degroot as discussed when addressing claim 1. Degroot teaches multilayered film structure where the core layer is derived from the polyolefin blend (reference claim 8 and col 23, lines 40-47), thus meeting the claimed requirements.
Claim 10 is rejected under 35 U.S.C. 102 (a)(1) as being anticipated by Degroot et al. US 11,230,641 B2 with evidentiary support reference Klosin et al. US 9,000,108 B2 and further evidence provided by Li Pi Shan et al. US 2006/0199930 A1 (cited within Degroot).
Regarding claim 10, in addition to that disclosed regarding claim 1, Degroot cites (col 9, lines 29-35), reference U.S. patent application Ser.No. 11/376,835 (Li Pi Shan et al. US 20060199930 A1), entitled "Ethylene/α-Olefin Block Interpolymers", filed on Mar. 15, 2006, which is incorporated by reference to provide additional details on the ethylene octene copolymers. Reference Li Pi Shan para [0031] teaches that the ethylene/octene copolymers have an octene content of 10 to 15 mol%, which meets the claimed requirement.
Claim Rejections - 35 USC § 103
The following is a quotation of 35 U.S.C. 103 which forms the basis for all obviousness rejections set forth in this Office action:
A patent for a claimed invention may not be obtained, notwithstanding that the claimed invention is not identically disclosed as set forth in section 102, if the differences between the claimed invention and the prior art are such that the claimed invention as a whole would have been obvious before the effective filing date of the claimed invention to a person having ordinary skill in the art to which the claimed invention pertains. Patentability shall not be negated by the manner in which the invention was made.
The factual inquiries for establishing a background for determining obviousness under 35 U.S.C. 103 are summarized as follows:
1. Determining the scope and contents of the prior art.
2. Ascertaining the differences between the prior art and the claims at issue.
3. Resolving the level of ordinary skill in the pertinent art.
4. Considering objective evidence present in the application indicating obviousness or nonobviousness.
Claim(s) 5, 16, 20 and 21 is/are rejected under 35 U.S.C. 103 as being unpatentable over Degroot et al. US 11,230,641 B2 with evidentiary support reference Klosin et al. US 9,000,108 B2 as applied to claims 1-4, 6, 9, 13-15 and 17-19 above.
Regarding claim 5, Degroot teaches (col 9, lines 55-57) that the ethylene/a-olefin interpolymers used in embodiments of the invention have a Mw/Mn from about 1.7 to about 3.5, overlapping the claimed requirement. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Regarding claim 16, Degroot discloses (col 13, line 8) that the density of the ethylene α-olefin have a density in the range of 0.855 to 0.935 g/cm3. As discussed when addressing claim 1, Degroot’s first and second ethylene copolymers both have density of 0.866 g/cm3. For a person having ordinary skill in the art, an obvious second ethylene copolymer derived from the teachings of Degroot would have been obvious to one having ordinary skill in the art with the expectation of success, as a density of 0.900 g/cm3 is within the recommended range of Degroot, to go along with the first ethylene copolymer having a density of 0.866 g/cm3.
Regarding claims 20 and 21, Degroot teaches a blend composition of two or more polymers (col 2, lines 58-60). Degroot additionally discloses linear low density polyethylene (LLDPE) (col 4, lines 12-31), and recognizes them as equivalents to the ethylene alpha olefin copolymers. As discussed, when addressing claims 1 and 19, the ethylene copolymer composition is taught by Degroot. Degroot further teaches multilayered film structure where the core film layer is derived from the polyolefin blend (reference claim 8 and col 23, lines 40-47). An obvious composition derived from the teaching of Degroot would be where both LLDPE and ethylene copolymer composition (Degroot Sample #2 of Table 4) are blended in equal amounts to generate a core film layer. "It is prima facie obvious to combine two compositions each of which is taught by the prior art to be useful for the same purpose, in order to form a third composition to be used for the very same purpose.... [T]he idea of combining them flows logically from their having been individually taught in the prior art." In re Kerkhoven, 626 F.2d 846, 850, 205 USPQ 1069, 1072 (CCPA 1980). See MPEP 2144.06.
Claim 8 is rejected under 35 U.S.C. 103 as being unpatentable over Degroot with evidentiary support reference Klosin, as applied to claims 1-4, 6, 9, 13-15 and 17-19, and further evidentiary support of Kazemi et al. US 2019/0135960 A1.
Regarding claim 8, Degroot (and Klosin) are silent on the composition distribution
breadth index, CDBI50. However analogous reference Kazemi who also teaches ethylene /α-Olefin (title and abstract) discloses that the homogeneous catalyst derived ethylene copolymers have CDBI50 greater than 70% (Kazemi, para [0040] and para [0179]). Since Degroot’s first and second ethylene copolymers, as discussed when addressing claim 1, Sample #2 (Table 4) are derived from homogeneous catalyst systems, they would be expected to have CDBI50 greater than 70%, overlapping the claimed requirement. Accordingly, it would have been obvious to have utilized any CDBI50 provided for by Degroot, as evidenced through Klosin and Kazemi et al., for purposes of achieving acceptably developed products as provided through Degroot with the expectation of success in the absence of a showing of new or unexpected results.
Claims 11-12 are rejected under 35 U.S.C. 103 as being unpatentable over Degroot with evidentiary support reference Klosin, as applied to claims 1-4, 6, 9, 13-15 and 17-19 and further in view of Li Pi Shan et al. US 2006/0199930 A1 (cited within Degroot).
Regarding claims 11-12, Degroot cites (col 9, lines 29-35), reference U.S. patent application Ser.No. 11/376,835 (Li Pi Shan et al. US 20060199930 A1), entitled "Ethylene/α-Olefin Block Interpolymers", filed on Mar. 15, 2006, which is incorporated by reference to provide additional details on the ethylene octene copolymers. Reference Li Pi Shan para [0031] teaches that the ethylene/octene copolymers have an octene content of 10 to 15 mol%, which overlap the claimed requirement. In the case where the claimed ranges “overlap or lie inside ranges disclosed by the prior art” a prima facie case of obviousness exists. In re Wertheim, 541 F.2d 257, 191USPQ 90 (CCPA 1976); In re Woodruff, 919 F.2d 1575, 16 USPQ2d 1934 (Fed. Cir. 1990).
Response to Arguments
Applicant's arguments filed 06/23/2026 have been fully considered, please see the response below.
The terminal disclaimer filed on 06/23/2026 has been reviewed and is accepted, and overcomes the provisional nonstatutory double patenting rejection over the pending application 18/546,113.
Applicant submits (Rejections under 35 U.S.C. § 102) that Degroot fails to teach the polyethylene composition as claimed, since Degroot teaches block copolymer of ethylene and an alpha-olefin. Applicant notes that the metallocene catalysts produce random copolymers, and that the block copolymers of Degroot and random copolymers of the present claims have different polymer microstructures. Applicant adds that claim 1 is directed to an ethylene copolymer composition comprising random ethylene copolymer components-not block copolymers.
In response, it is acknowledged that Degroot teaches block copolymer of ethylene and octene, however the claim language only requires ethylene copolymers, which include both random and block copolymers. Claim 1 (including claims 2-6 and 8-21) does not have the limitation of a “random” copolymer. Since Degroot’s copolymer blend Sample #2 meets all the claimed polymer composition requirements of (i) and (ii), and the overall ethylene copolymer composition, it meets the claimed requirements. Applicant has provided arguments for the limitations which are not claimed. The case law holds that: “Although, the claims are interpreted in light of the specification, limitations from the specification are not read into the claims. In re Van Geuns, 988 F.2d 1181, 26 USPQ2d 1057 (Fed. Cir. 1993)”, See MPEP 2145 VI.
Applicant argues (Rejections under 35 U.S.C. § 103) that Degroot provides general definition of a polymer blend without teaching or suggesting that LLDPE should be used as a component of a polymer blend with the claimed ethylene copolymer composition. Applicant further notes that LLDPE of the present claims have different density requirements that the elastomer disclosed in Degroot.
In response, Degroot teaches a polymer blend. While Degroot does not provide an embodiment of a blend composition of ethylene copolymer composition and LLDPE, as discussed in the main rejection, a blend composition would be readily envisaged by the person having ordinary skill in the art, based on Degroot’s disclosure. The case law holds that: "[I]n considering the disclosure of a reference, it is proper to take into account not only specific teachings of the reference but also the inferences which one skilled in the art would reasonably be expected to draw therefrom." In re Preda, 401 F.2d 825, 826, 159 USPQ 342, 344 (CCPA 1968).
Applicant is additionally reminded that the claim language does not require the density values of LLDPE, although Degroot provides the range of density values of 0.855 to 0.925 g/cm3, which overlap with the LLDPE density as discussed in the instant specification.
Finally, applicant adds that combination of ethylene copolymer composition with LLDPE provides unexpected and beneficial properties, where Inventive examples 6 and 12 with an LLDPE resin provides a good balance of stiffness and toughness, and that these properties are not readily predictable from the ethylene copolymer compositions of the prior art.
Applicant’s inventive examples 6 and 12 and comparative example 3 (instant specification Table 2) have similar molecular weights but the inventive examples demonstrate improved modulus and impact properties, as compared to the comparative example 3. However, the difference in the modulus of the films derived from inventive vs comparative composition (instant specification Table 12) can be attributed to the differences in crystallization behavior and levels of crystallinity, where the comparative example which has the lowest % crystallinity (instant specification Table 2), would be predicted to have low stiffness, which is an expected outcome. The lack of a second ethylene copolymer in the comparative example 3 would also explain the low impact value in the resultant film. Applicant’s attention is brought to: "Expected beneficial results are evidence of obviousness of a claimed invention, just as unexpected results are evidence of unobviousness thereof." In re Gershon, 372 F.2d 535, 538, 152 USPQ 602, 604 (CCPA 1967). "The fact that appellant has recognized another advantage which would flow naturally from following the suggestion of the prior art cannot be the basis for patentability when the differences would otherwise be obvious." Ex parte Obiaya, 227 USPQ 58, 60 (Bd. Pat. App. & Inter. 1985).
Applicant’s arguments against all the secondary and evidentiary references are focused on the primary reference Degroot teaching a block copolymer and not a random copolymer.
As discussed above, applicant’s arguments against reference Degroot are found to be unconvincing and therefore Degroot (and the secondary references) continues to provide the foundation for maintaining the rejection.
Conclusion
THIS ACTION IS MADE FINAL. Applicant is reminded of the extension of time policy as set forth in 37 CFR 1.136(a).
A shortened statutory period for reply to this final action is set to expire THREE MONTHS from the mailing date of this action. In the event a first reply is filed within TWO MONTHS of the mailing date of this final action and the advisory action is not mailed until after the end of the THREE-MONTH shortened statutory period, then the shortened statutory period will expire on the date the advisory action is mailed, and any nonprovisional extension fee (37 CFR 1.17(a)) pursuant to 37 CFR 1.136(a) will be calculated from the mailing date of the advisory action. In no event, however, will the statutory period for reply expire later than SIX MONTHS from the mailing date of this final action.
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/S.M.D./
Examiner
Art Unit 1765
/JOHN M COONEY/Primary Examiner, Art Unit 1765
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